Citation Nr: 0716460
Decision Date: 06/04/07 Archive Date: 06/18/07
DOCKET NO. 03-07 352 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Donovan, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1982 to April
1985.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a January 1997 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Washington, D.C. which, in pertinent part, denied service
connection for hearing loss.
During the pendency of this appeal the veteran's claims file
was transferred to the jurisdiction of the Winston-Salem,
North Carolina RO, which has certified the case for appellate
review.
In July 2004 the veteran testified before the undersigned in
Washington, D.C. A transcript of that hearing is of record.
At the hearing the veteran raised a claim of entitlement to
service connection for an arm condition. This claim has not
been adjudicated and is referred to the RO for appropriate
action.
In June 2006 the Board remanded the claim for further
development. That development has been completed.
FINDING OF FACT
Hearing loss was not demonstrated in service or within a year
after separation from service and has not been shown by
competent medical evidence to be etiologically related to
service.
CONCLUSION OF LAW
Service connection for hearing loss is not warranted.
38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002 & Supp.
2006); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Preliminary matters-The Veterans Claims Assistance Act
of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2006).
A. The duty to notify
In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112,
120-21 (2004), the United States Court of Appeals for
Veterans Claims (Court) held that under the VCAA, VA must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must request that the claimant
provide any evidence in his possession that pertains to the
claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R.
§ 3.159(b) (2006).
A July 2006 VCAA letter advised the veteran of the
information and evidence required to establish service
connection for hearing loss. This VCAA letter satisfied the
second and third elements of the duty to notify by informing
the veteran that VA would try to obtain medical records,
employment records, or records held by other Federal
agencies, but that he was nevertheless responsible for
providing any necessary releases and enough information about
the records to enable VA to request them from the person or
agency that had them.
With respect to the fourth element, the July 2006 VCAA letter
stated, "If you have any evidence in your possession that
pertains to your claim, please send it to us." The veteran
was thus adequately advised of the fourth element of the duty
to notify.
In Pelegrini II, the Court also held that VCAA notice should
be given before an initial AOJ decision is issued on a claim.
Pelegrini II, 18 Vet. App. at 119-120. In this case, VCAA
notice could not have been provided prior to the initial
decision, because the VCAA did not become effective until
after the initial decision on the claim. In such a case, the
timing deficiency is remedied by the issuance of VCAA notice
followed by readjudication of the claim. Mayfield v.
Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The December
2006 supplemental statement of the case (SSOC) considered the
claim based on the evidence of record. This readjudication
acted to remedy any timing defect in regard to the VCAA.
The Court has also held that the VCAA notice requirements of
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all
five elements of a service connection claim. Those five
elements include: 1) veteran status; 2) existence of a
disability; 3) a connection between the veteran's service and
the disability; 4) degree of disability; and 5) effective
date of the disability. Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006).
The July 2006 VCAA letter provided notice regarding
disability ratings and effective dates. Thus, all required
notice has been given.
B. The duty to assist
The VCAA also requires VA to make reasonable efforts to help
a claimant obtain evidence necessary to substantiate his
claim(s). 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R.
§ 3.159(c), (d) (2006). This "duty to assist" contemplates
that VA will help a claimant obtain records relevant to his
claim, whether or not the records are in Federal custody, and
that VA will provide a medical examination and/or opinion
when necessary to make a decision on the claim. 38 C.F.R.
§ 3.159(c)(4).
In the present case, the duty to assist has been fulfilled.
The veteran's service medical records and VA and private
treatment records have been associated with the claims file.
In addition, the veteran was afforded a VA examination to
evaluate his claimed hearing loss in November 1996. The
Board notes that this examination found the veteran's hearing
to be normal, bilaterally, and thus did not include an
opinion as to etiology of hearing loss.
VA is obliged to provide an examination when the record
contains competent evidence that the claimant has a current
disability or signs and symptoms of a current disability, the
record indicates that the disability or signs and symptoms of
disability may be associated with active service, and the
record does not contain sufficient information to make a
decision on the claim. 38 U.S.C.A. § 5103A(d). The evidence
of a link between current disability and service must be
competent. Wells v. Principi, 326 F. 3d 1381 (Fed. Cir.
2003).
While a September 1996 private audiological evaluation may be
read as demonstrating hearing loss, as will be discussed in
greater detail below, there is no competent medical evidence
of a link between hearing loss and service. Therefore a new
VA examination is not warranted. 38 U.S.C.A. § 5103A(d);
38 C.F.R. § 3.159(c)(4).
For the reasons set forth above, the Board finds that VA has
complied with the VCAA's notification and assistance
requirements. The appeal is thus ready to be considered on
the merits.
II. Analysis
Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated thereby. 38 U.S.C.A. § 1131 (West 2002);
38 C.F.R. § 3.303(a) (2006).
To prove service connection, there must be (1) medical
evidence of a current disability, (2) medical evidence, or in
certain circumstances lay testimony, of in-service incurrence
or aggravation of an injury or disease, and (3) medical
evidence of a nexus, or link, between the current disability
and the in-service disease or injury. Hickson v. West, 12
Vet. App. 247, 253 (1999). The determination as to whether
these requirements are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999).
Service connection for impaired hearing shall only be
established when hearing status as determined by audiometric
testing meets specified pure tone and speech recognition
criteria. Audiometric testing measures pure tone threshold
hearing levels (in decibels) over a range of frequencies (in
hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The
determination of whether a veteran has a disability based on
hearing loss is governed by 38 C.F.R. § 3.385.
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, or 4000 hertz is 40 decibels or greater; or when
the auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
The veteran had an initial audiological evaluation by a
private audiologist in September 1996. The veteran reported
a history of noise exposure both in military service and in
his employment with the postal service, where he worked
around large sorting machines.
Standard pure tone audiometric testing revealed hearing
within normal limits for both the right and left ear. Pure
tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
10
25
LEFT
15
20
5
15
35
The veteran's speech discrimination was 92 percent in the
left ear, masked, and 88 percent in the right ear, masked.
Unmasked, speech discrimination was 96 percent in the left
ear and 100 percent in the right ear. The audiologist noted
that the veteran had a mild high frequency loss, bilaterally,
with excellent speech recognition abilities.
At VA General Medical examination in November 1996 the
veteran stated that he had experienced temporary hearing
problems which were no longer bothersome. Examination of the
ears and gross hearing was within normal limits.
The veteran underwent a VA audiological examination in
November 1996. Pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
10
15
35
LEFT
20
25
15
20
30
The veteran's speech recognition using the Maryland CNC Word
List was 100 percent bilaterally. The audiologist's
diagnosis was hearing within normal limits, bilaterally.
The VA and private treatment records include no other
complaints regarding or treatment for hearing loss. While
the November 1996 VA examination revealed normal hearing
bilaterally, the September 1996 private treatment report
includes masked speech discrimination scores of less than 94
percent in both ears. Although the private audiology report
does not indicate whether the speech discrimination testing
was conducted using the Maryland CNC Word List, as required
by 38 C.F.R. § 3.385, resolving all doubt in favor of the
veteran, the Board finds that the criterion of a current
hearing loss disability at the time of the veteran's claim is
satisfied.
In regard to the second element, service medical records do
not indicate any hearing loss. Rather, hearing was within
normal limits at both the veteran's December 1981 induction
examination and his March 1985 separation examination.
Despite the absence of evidence of hearing loss in service,
the veteran has reported noise exposure during service. He
is competent to report this exposure, and his Form DD 214
reflects that he was a tactical satellite, microwave system
operator. There is, thus, evidence in support of the second
element of service connection.
While the first two criteria are met, the service connection
claim must fail as there is no medical evidence of a nexus
between current hearing loss and service.
While the veteran himself has made the claim of service
connection, as a layperson he is not competent to express an
opinion as to medical causation of hearing loss, as he has
not claimed, nor shown, that he is a medical expert, capable
of rendering medical opinions. Espiritu v. Derwinski, 2 Vet.
App. 492 (1992).
Service connection may also be granted for sensorineural
hearing loss, as an organic disease of the nervous system, on
a presumptive basis, if it appeared to a compensable degree
within one year after service. 38 U.S.C.A. §§ 1112, 1113,
1131, 1137; 38 C.F.R. §§ 3.307, 3.309. There is no evidence
of sensorineural hearing loss in the decade immediately
following service.
If a chronic disease is identified in service and at any time
thereafter, service connection is presumed. 38 C.F.R.
§ 3.303(b). As the service medical records are negative for
any findings of hearing loss, that condition was not
identified in service.
If a chronic disease is not adequately identified in service,
a continuity of symptomatology is required. Id. The
veteran, for his part, has not reported a continuity of
symptomatology since service and the record does not show any
symptomatology for many years after service.
The record does not document hearing loss until September
1996. At that time the veteran reported a history of noise
exposure in his work with the postal service. His reported
post-service occupational noise exposure, coupled with the
fact that there is no evidence of hearing loss until over 10
years after service, weighs against the finding of a nexus
between the current hearing loss and service. Maxson v.
Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000).
In the absence of competent medical evidence of a nexus
between hearing loss and service, the claim must be denied.
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the claim. Since
the preponderance of the evidence is against the claim, the
benefit-of-the-doubt rule does not apply, and the claim is
denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
ORDER
Entitlement to service connection for hearing loss is denied.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs